CAI-NJ Aug.2016

MANAGEMENT TRENDS

Construction Defects: The Importance of Documentation By Walter Broome

Y ou’ve had construction work completed on your property, but the work doesn’t appear to be correct. What does this mean and, more importantly, what should be done to remedy the work that is already there? The term “construction defect” has a very all-encompass- ing meaning and may concern multiple aspects of project development. This can be from the planning to the design to the construction of a project. Causes can emanate from the use of faulty materials, workmanship, design flaws, or a contractor not adhering to the plans or specifications. The role of a property manager is important as they often possess essential knowledge as to the details of the process that had taken place. For that reason, careful record keeping is essential, as a significant amount of time can evolve from the time of construction until the defect is disclosed. Records that are easy to reference may be crucial in determining the outcome of potential disputes between the association and the construction contractors. Attendance at construction meetings between professionals and contractors is helpful as notes derived from such meetings can be invaluable at a later time. If defects that were found impact the safety of the com- munity, every precaution must be taken to ensure the well being of the residents and the preservation of the property. The first step once a defect is found is to protect the people using the affected areas. Once placed on notice, property managers must be mindful of the liability due to this defect and of the consequences in the event of an injury potentially caused by any unsafe condition. The second step is to curtail damage to these areas and lessen the col- lateral damage. The third step is to evaluate the situation. Experts will be crucial in determining what remedial mea- sures will need to be taken. Scaffolding may need to be erected. Netting may be utilized to catch falling debris. Areas may need to be cordoned off. Common areas should be protected to minimize damage and prevent contact between the residents and contractors hired to mediate the damage.

"The first step once a defect is found is to protect the people using the affected areas."

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Once a defect is suspected, often a professional is hired by the association board to investigate the problem and determine its severity. The manager’s assistance can great- ly improve the expert’s ability to find and disclose problems. To the best extent possible, the property manager should work to minimize any negative impact of the investigation or the remedial work itself on the residents. Often a timeline will be very helpful, as mandatory stat- utes can determine a course of action depending on the amount of time that lapsed since the work was deemed completed. Under most circumstances, an association has six years to institute a lawsuit for construction defects under New Jersey Statute 2A:14-1. If efforts to have the contractor remediate the problem are unsuccessful, legal action may be required. It is important that the attorney is experienced with constantly evolving construction litigation law as well as the laws covering insurance coverage for construction defects. An attorney may rely on not only the expert’s reports, but the testimony from the property manager. The property manager may be deposed to testify as a witness as to their knowledge of the association’s construction work. The information obtained from the manager from prior construction meetings can

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